Schoenfeld v. Modern Silver Linen Supply Co.

279 A.D. 49, 107 N.Y.S.2d 861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1951
• Status: Published

Opinion

Per Curiam.

When a document which prime facie defeats the plaintiff’s cause of action, is produced on a motion for summary judgment to dismiss the complaint, it is incumbent upon plaintiff to show by affidavit or other proof such facts sufficient to entitle him to a trial of the action (Bules-Civ. Prac., rule 113).

In support of their motion, defendants submitted a general release executed by plaintiff at the time of his discharge which runs to defendants, their affiliated corporations and principal stockholders. Plaintiff has failed to impugn the validity of this release; or to raise a question of fact as to its validity or purpose. The bare statement that the release was a “ mere formality ” is clearly insufficient.

Moreover, plaintiff’s complaint is that defendants breached an alleged oral agreement of employment made on February 7, 1947. The documentary- proof presented by defendant to assail that claim consists of a written contract by the parties made on July 24, 1947. This instrument is wholly inconsistent with the oral agreement. In the circumstances, - the prior oral contract must be deemed to have "been superseded by the writing (Johnson v. Cheney Bros., 277 App. Div. 656, [Van Voorhis, J.]).

The order should be reversed, with $20 costs and disbursements to appellants, and the motion for summary judgment should be granted, and judgment, directed to be entered dismissing the complaint herein, with costs to defendants.

.""¡"Dope, J. P.,Cohn, Callahan, Van Voorhis and Shientag, JL, concur. .."!

Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered dismissing the complaint herein, with costs.